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THE 



ALASKA-CANADA 
BOUNDARY DISPUTE 



BY 



THOMAS HODGINS 



FROM 
THE CONTEMPORARY REVIEW 
AUGUST 19 0?^ 






^ 



QUEEN ALEXANDRA. 189 

"Queen Victoria also. . . ." She stopped a few seconds. . . . 
" Now a great duty has fallen upon me, a great task is set before my 
" soul. Ah ! if love could render people happy and content, 1 am sure 
" all the English would be happy and content with their Sovereigns 
" because we love them so." 

" And how the nation loves you, Madam. The King, the Queen 
" are ever reverently and lovingly mentioned like a prayer, like the air 
" they breathe and are thankful for, because it gives them Hfe, like the 
" salt of their bread and their seas." 

" The King, the Queen. . . . Yes, the King knows how to make 
" himself beloved. He understands and cherishes the nation. But if 
" they love me it is only because they are so good and true. You cannot 
"imagine how good, how true the people are in England, in all 
"classes everywhere. There are some Princesses and reigning 
" Queens, are there not, who ever feel themselves strangers in the lands 
" that become theirs by marriage ? I have never known this feehng, 
" not one single moment, and now I never succeed in discerning that I am 
" not born here ; it seems to me as if even my childhood had been spent 
" here, and even when I am away from this land I am not absent. I am 
" here, and I am in every corner of England, as if I belonged to this 
" earth entirely. The people are so good. They partake all our joys 
" and sorrows, and their joys and sorrows are ours." 

I looked at the Queen's soft, immaterial form and face — the years 
fell vanquished at the feet of one whose beauty they neither dare 
offend nor touch. I saw again those autumn days at Balmoral, and 
that spring afternoon in Rome. By the open windows the green 
light of the trees entered into the high room at Marlborough House. 
I spoke in my turn. The Queen sat listening, and from time to time 
put in remarks that proved how intently she felt all I said. Her soul 
shone strong and pure on her round forehead, and in her boundless 
eyes that never seem weary of reading life, discovering pain, and 
soothing it. When her Majesty dismissed me she stood there in the 
green light of the neighbouring trees exactly as she had stood in the 
autumn forest, and again she represented Springtime and Hope, 
Serenity and Strength. 

I believed the cycle would be closed of my visions of the Northern 
Fairy by the supreme vision of a Queen in Coronation attire, surrounded 
by her Regalia on a glorious June morning, in the sound of bells, 
cannon and song. I was mistaken. Another aspect of hers now rushes 
before the eyes of all who adore her, the sight of a devoted wife 
by the bedside of a King, and bearing in her hands the blessings 
and prayers of all the Empire to soothe his sufferings. Heaven has 
been merciful. The King is saved. The Queen is ready to follow 
him through the glory of their Coronation day. She has accomplished 
all the rites of womanhood, all the duties of a Queen. 

Helene Vacaresco. 



THE ALASKA-CANADA BOUNDARY DISPUTE. 



THE admission of British Columbia into the Dominion in 1871 
caused Canada to become a party to the Alaska boundary 
dispute: and ever since 1872 urgent and almost yearly requests have 
been made by the British and Canadian Governments to the Govern- 
ment of the United States for an " expeditious settlement " of the 
disputed line of demEircation between the newly-joined Province and 
the Territory of Alaska. The passive resistance of the United States 
to these requests is inexplicable, unless on the unattractive assumption 
that the unsanctioned occupation by the United States of disputed 
British-Canadian territory, and the national insistence in defending 
that occupation, must ultimately, as in former boundary disputes, assure 
a diplomatic triumph over Great Britain, and secure to the Republic 
a further cession of Canadian territory for the enlargement of Alaska. 
The diplomatic disasters through which Canada has lost some of the 
best portions of her original heritage* explain why Canadians now 
look with intense anxiety for the just settlement of the Alaska 
boundary controversy ; for, as was said by Sir Charles Dilke in his 
Problems of Greater Britain, " It is a fact that British Diplomacy 
" has cost Canada dear." 

Ex-President Cleveland, an authority on the diplomatic policy of 
the United States, has lately furnished in the Century what may be 
an apt foreshadowing of that policy in the Alaska case : — 

One or the other of two national neighbours claims that their 
boundary line should be defined or rectified. If this is questioned, a 
season of diplomatic untruthfulness and finesse sometimes intervenes, 
for the sake of appearances. Developments soon follow, however, 
that expose a grim determination, behind fine phrases of diplomacy, 
and in the end the weaker nation frequently awakens to the fact that 
it must accede to an tdtimatum dictated by its stronger adversary, or 
a despoliation of its territor)', and, if such a stage is reached, superior 

* See British and Aynerican Diplomacy affectins; Canada, lySs—iSgg : Toronto, 
1890. 



THE ALASKA-CANADA BOUNDARY DISPUTE, 191 

strength and fighting ability, instead of suggesting magnanimity, are 
graspingly used to enforce extreme demands, if not to consummate 
extensive spoliation. 

And he added : — 

While on this point we are reminded of the shrewd sharp trader 
who demands exorbitant terms, and with professions of amicable 
consideration invites negotiation, looking for a result abundantly 
profitable in the long range for dicker — a well-known specialty of 
his countrymen. 

The Anglo-Russian Treaty of 1825, which described the now 
disputed boundary line of demarcation in Alaska, was the final settle- 
ment of a keen diplomatic controversy between Great Britain and the 
United States on the one side, and Russia on the other, over a Russian 
Ukase of 1821, claiming maritime sovereignty over 1 00 miles of ocean 
in Behring Sea. (This Ukase was suddenly revived by the United 
States in 1886, and under it about 20 British ships were confiscated or 
driven away, and some of their crews imprisoned and fined ; but 
these proceedings the Arbitration of 1893 decided to be a violation of 
the Law of Nations.) 

The Treaty also settled the long-pending controversy about the 
territorial boundaries. As was stated by Mr. Justice Harlan, of the 
Supreme Court, in the Behring Sea Arbitration : — 

The positions taken by the United States and Great Britain were 
substantially alike, namely, that Russia claimed more territory on the 
north-west coast of America than she had title to, either by discovery 
or occupation. 

During the negotiations for the Treaty of 1825, Russia, while admit- 
ting that she had no establishments on the southerly portion of the 
coast, contended that " during the hunting and fishing seasons, the 
" coast and adjacent waters were exploited by the Russian-American 
" Company, the only method of occupation which those latitudes were 
" susceptible of " ; adding, " We limit our requirements to a mere strip 
" of the continent ; and so that no objection be raised, we guarantee 
" the free navigation of the rivers." The expressions used by Count 
Nesselrode, the Russian Minister of Foreign Affairs, in describing the 
strip of coast, were, " entroite lisiere stir cote;'' " d'une simple lisiere 
" du continent ; " " d'un mediocre espace de terre -firmer The free 
navigation of the waters in the strip of coast was proffered, on several 
occasions, by Count Nesselrode, with assure litres debouches ; and 
finally by the Russian Plenipotentiaries in these words : — 

His Imperial Majesty's Plenipotentiaries, foreseeing the case where 
in the strip or border of coast belonging to Russia waters (fleuves) 
should be found, by means of which the British establishments should 
be made to have free intercourse with the ocean, were eager to oft'er 
as a persuasive stipulation the free navigation of those waters. 



192 THE CONTEMPORARY REVIEW. 

The British instructions to the Minister at St. Petersburg were as 
follows: — 

In fixing the course of the eastern boundary of the strip of land to 
be occupied by Russia on the coast, the seaward base of the 
mountains is assumed as that limit. But we have experience that 
other mountains on the other side of the American continent, which 
had been assumed in former treaties as lines of boundary, were 
incorrectly laid down on the maps ; and this inaccuracy has given rise 
to very troublesome discussions. It is therefore necessary that some 
other security should be taken that the line of demarcation to be 
drawn parallel to the coast as far as Mount St. Elias is not carried too 
far inland. This should be done by a proviso that the line should in 
no case, i.e., not in that of the mountains (which appear by the map 
also to border the coast) turning out to be far removed from it, 
be carried further to the east than a specified number of leagues 
from the sea. The utmost extent which His Majesty's Government 
would be disposed to concede would be a distance of ten leagues ; 
but it would be desirable if your Excellency were enabled to obtain a 
still more narrow limitation. 

Ihe Russian centre projet omitted the mountain summit line, and 
proposed that the strip of border of coast " naura -point en largeur 
" sur la continent phis de lo lieiies marines a parter du bord de la 
" mer^ The British Foreign Secretary replied, " We cannot agree to 
this change ; " adding : — 

To avoid the chance of this inconvenience, we propose to qualify 
the general proposition that the mountains shall be the boundary 
with the condition, if those mountains should not be found to extend 
beyond ten leagues from the coast. 

The following Articles, and the despatch of the British Minister to 
the Foreign Secretary, stating that " The line of demarcation along 
" the strip of land assigned to Russia is laid down in the Convention 
" agreeably to your directions," show that the British conditions as to 
the limits of the boundary line were accepted by Russia, and incor- 
porated into the Treaty : — 

III. The line of demarcation between the possessions of the High 
Contracting Parties upon the coast of the continent, and the islands 
of North America to the north-west, shall be drawn in the manner 
following : Commencing from the southernmost part of the island 
called Prince of Wales Island, which point Ues in the parallel of 
54° 40', north latitude, and between the 131st and the 133rd degree 
of west longitude (meridian of Greenwich), the said line shall ascend 
to the north along the channel called Portland Channel, as far as the 
point of the continent where it strikes the 56th degree of north 
latitude ; from the last-mentioned point the line of demarcation shall 
follow the summit of the mountains situated parallel to the coast, as 
far as the point of intersection of the 141st degree of west longitude 



THE ALASKA-CANADA BOUNDARY DISPUTE. 193 

(of the same meridian) ; and finally, from the said point of intersection 
the said meridian line of the 141st degree, in its prolongation as far 
as the Frozen Ocean, shall form the limit between the Russian and 
British possessions on the continent of America to the north-west. 

IV. With reference to the line of demarcation laid down in the 
preceding article, it is understood, ist that the island called Prince of 
Wales Island shall belong wholly to Russia, 2nd, that wherever the 
summit of the mountains, which extend in a direction parallel to the 
coast from the 56th degree of north latitude to the point of inter- 
section of 141st degree of west longitude, shall prove to be of a 
distance of more than ten marine leagues from the ocean, the limit 
between the British possessions and the strip of coast {la lisiere de 
cole), which is to belong to Russia as above mentioned, shall be 
formed by a line parallel to the windings of the coast, and which 
shall never exceed the distance of ten marine leagues therefrom {et 
qui ne pourra jamais en etre ehignee que de ten lieues marines). 

VI. It is understood that the subjects of His Britannic Majesty, 
from whatever quarter they may arrive, whether from the ocean, or 
from the interior of the continent, shall, for ever, enjoy the right of 
navigating freely, and without any hindrance whatever, all the rivers 
and streams which, in their course towards the Pacific Ocean, may 
cross the line of demarcation upon the strip of coast {sur la lisiere de 
la cote), described in Article III. of the present Convention. 

Articles III. and IV. were incorporated into the Russian Treaty of 
1867, by which Alaska was ceded to the United States. 

And here should be noted the change of expression from " sea " 
in the draft projets, to " Ocean " in the Treaty. In the British draft 
the words were depuis la mer ; and in the Russian dii bord de la mer ; 
in the Treaty they are, 10 lieues marines de V Ocean, a more accurate 
expression. The reason for the change may be found in the argument 
of Mr. Wheaton before the Supreme Court of the United States : 
" The sea, technically so termed, includes ports and havens, rivers and 
" creeks, as well as the sea-coasts." And Mr. Justice Story in another 
case decided that only the unenclosed waters on the sea-coast, outside 
the fauces terrae, were high seas {altum viare, or le haul mare), or 
ocean. The change of expression, therefore, makes the Treaty line 
free of any possible doubt, and proves that the line of demarcation of 
the Russian strip of coast was to be 10 marine leagues from the 
ocean-coast, and not from the upper shores of inlets, bays or other 
arms of the sea. 

The following commentary on this Treaty, written by Mr. Secretary 
Blaine to the British Ambassador in 1890, is a diplomatic admission, 
on behalf of the United States, of " the spirit and intent " of this 
Treaty : - — 

It will be observed that Article III. expressly delimits the boundary 
between British America and the Russian possessions. The delimita- 
tion is in minute detail from 54^ 40' tp the northern terminus of the 



194 ^rHE CONTEMPORARY REVIEW. 

coast. The evident design of Article IV. was to make certain and 
definite the boundary line along the strip of coast, should there be 
any doubt as to that line as laid down in Article III. It provided 
that the boundary line, following the windings of the coast, should 
never be more than ten marine leagues therefrom. 

And as to Article VI. : — 

Nothing is clearer than the reason for this. A strip of land at no 
point wider than ten fnarine leagues running along the Pacific Ocean 
from 54° 40', was assigned Russia by the 3rd Article. Directly to the 
east of this strip of land, or, as it might be said, behind it, lay the 
British possessions. To shut out the inhabitants of the British 
possessions from the sea, by this strip of land, would have been not 
only unreasonable, but intolerable, to Great Britain. Russia promptly 
conceded the privilege, and gave to Great Britain the right of 
navigating all rivers crossing that strip of land from 54° 40' to the 
point of intersection with the 141st degree of longitude. Without 
this concession the Treaty could not have been made. It is the 
same ^/r/)) <?//(2«^ which the United States acquired in the purchase 
of Alaska ; the same st?-ip of land which gave to British America, 
lying behind it, a free access to the ocean. 

And Senator Washburn, in the debate on the Alaska Treaty of 1867, 
acknowledged that Great Britain had a Treaty with Russia. " giving 
" her subjects, for ever, the free navigation of the rivers of Russia 
" and America." 

The contention of the United States, as stated in a late Magazine 
Article by Mr. Ex- Secretary Foster is, that " Russia was to have a 
" continuous strip of territory on the mainland around all the inlets or 
"arms of the sea;" and that the boundary line was not to cross, as 
claimed by Great Britain, such inlets or arms of the sea at the distance 
of 10 marine leagues from the ocean. And he supports his conten- 
tion by the ar giimentuin ab inconveniently that " the purpose for which 
" the strip was established would be defeated if it was to be broken 
" in any part of its course by inlets, or arms of the sea, extending into 
" British territory." Great Britain and Canada dispute this 
" rounding " theory, and contend that the terms used, the minute 
details as to mountain summits, together with the expression ne poiirra 
jamais, which imports an imperative negative and veto on any uncer- 
tainty as to the exact locus of the Inie separating the territories of the 
two nations, clearly indicate that the Russian territory was to be, in 
the words of the late Mr. Secretary Blaine, " a strip of land at no point 
" wider than 10 marine leagues, running along the Pacific Ocean." 
And that the Treaty line was to cross inlets and arms of the sea, at the 
10 marine league distance, is clear from the Russian " persuasive 
" stipulation," as well as from the 6th Article ; otherwise the reciprocal 
concession of free navigation would be meaningless. 



THE ALASKA-CANADA BOUNDARY DISPUTE. 195 

The practical effect of the claim of " a continuous strip of territory 
" around all the arms or inlets of the sea " would be to nullify 
the Russian grant of litres debouches through the inlets, or arms of 
the sea, along the Alaskan strip of coast. Taku Inlet is one-fifth of 
a mile wide at its ocean mouth, and extends inland for about 23 miles. 
The United States claim the whole, and ten marine leagues inland, 
instead of seven miles. Lynn Canal has three ocean mouths (owing 
to two islands) of four-and-three-quarters, one-and-three-quarters, and 
one-and-a-half miles wide respectively ; and extends inland for about 
70 miles ; the United States claim the whole as territorial waters, 
and also ten marine leagues of inland territory. Glacier Bay is three- 
and-a-half miles wide, and extends inland for about 45 miles from the 
ocean. The United States claim the upper 15 miles and also 10 
marine leagues of inland territory. The 10 marine leagues is equal to 
30 marine miles ; and the upper waters, beyond that distance, are 
claimed as British territorial waters. The British territory thus 
claimed by the United States, beyond the Treaty strip of coast, is 
300 miles from north to south, and from 14 to 70 miles 
wide. These claims completely bar Great Britain's free 
access to the Pacific Ocean through these inlets and arms of the 
sea, guaranteed to her by the Treaty of 1825. By the Law of 
Nations all the above are territorial waters, and have all the legal 
incidents which pertain to landed territory, except that their waters 
are subject to what is defined as the " imperfect right of free 
" navigation." 

By a strange discordance, however, the United States concede that 
the international boundary line crosses certain territorial waters, 
geographically designated " rivers " ; but deny that it crosses certain 
other territorial waters geographically designated " inlets, bays and 
" canals," — although both classes of territorial waters are governed by 
the same general principles of International Law as to the territorial 
sovereignty. The existence of such inlets, bays and canals cannot 
therefore possibly sanction an increase in the inland breadth of the 
lisiere de cote. A converse line also proves this. Were the 10 marine 
leagues to be measured seaward from the coast, they would be 
measured from the sea-mouths, and not from the upper shores, of 
inlets, or other territorial waters ; for these had to be expressly 
mentioned in the Behring Sea Regulations which prohibit seal-hunting 
within " a zone of 60 miles around the Pribilof Islands, inclusive of 
** the territorial water s'' 

But the British contention may be further tested by the acknow- 
ledged authorities on International Law. From the many judicial 
authorities on the law, the following may be cited from the judgment 
of Mr. Justice Brett (afterwards Lord Esher) in the Keyn case: "By 
" the law of nations, — made by the tacit consent of substantially all 
" nations, — the open sea, within three miles of the coast, is part of the 



196 THE CONTEMPORARY REVIEW. 

" territory of the adjacent nation, as much, and as completely, as if it 
" were the land of such nation." 

Wheaton on International Law says, " The maritime territory of 
" every State extends to the ports, harbours, bays, mouths of rivers, 
" and adjacent parts of the sea, enclosed by headlands belonging to 
" the same State. The general usage of nations superadds to this 
" extent of territorial jurisdiction a distance of a marine league, or as 
" far as a cannon shot will reach from the shore, along all the coasts 
" of the State." An early illustration of this law was given by Mr. 
Justice Story : " Where there are islands enclosing a harbour, in the 
" manner 'in which Boston Harbour is enclosed, with such narrow 
" straits between them, the whole of its waters must be considered as 
" within the body of the county. Islands so situated must be con- 
" sidered the opposite shores in the sense of the adjoining land down 
" to a line running across." And, " in the sense of the common law, 
" such waters seem to be within the fauces terrae, where the main 
" ocean terminates." And Daniel Webster argued that, by the 
common law, ports and harbours are within the body of the county, 
consequently not part of the high seas ; and a navigable arm of the 
sea, therefore, is not part of the high seas, which is the open ocean, 
outside the fauces terrae. 

These rules of International Law as to the sea-mouths of inlets 
have been incorporated into the municipal law of the United States. 
Some of their State laws enact : " The territorial limit of this Common- 
" wealth extends to one marine league from its shore at low-water 
" mark. When an inlet or arm of the sea does not exceed two marine 
" leagues in width, between its headlands, a straight line from one 
" headland to the other is equivalent to the shore line." These laws 
have been upheld by the Supreme Court ; and in giving judgment 
the Court held that, " as between nations, the minimum limit of the 
" territorial jurisdiction of a nation over tide-waters is a marine league 
" from its coasts ; and bays wholly within the territory of a nation, 
" which do not exceed two marine leagues, or six geographical miles, 
" in width at the mouth, are within the limit, and are part of the 
" territory of the nation in which they lie." 

The historic evolution of the limit of shore-defence is given in 
Blunischlis Law of Nations: — 

The sovereignty of States over the sea extended originally to a 
stone's throw from the coast ; later to an arrow's shot ; firearms were 
then invented, and by rapid progress we have arrived at the far- 
shooting of the cannon of the present age. But we still preserve the 
principle: Terrae dominium finiiur, ubi finiitir vis. 

But while the United States have sought to hold Great Britain 
boimd by the six mile sea-mouth in Treaty and other disputes, they 
have claimed and exercised the rights of sovereignty over bays and 
inlets around their coast of much wider sea-mouths. In 1793, they 



THE ALASKA-CANADA BOUNDARY DISPUTE. 197 

claimed that Delaware Bay, having- a sea-mouth of 10.5 miles from 
headland to headland, widening to 25 miles inland, was part of the 
maritime territory of the United States, and that the capture of a 
British ship by a French frigate " within its capes before she had 
" reached the sea " was a violation of the territory and sovereignty of 
the United States. In 1807 Congress decided that Chesapeake 
Bay, having a sea-mouth of 12.7 miles from headland to headland, 
" was within the acknowledged jurisdiction of the United States." 

Senator Seward during a Debate in the Senate in 1852 declared 
that the contention of the United States that only bays six miles 
wide, or less, at the mouth, could be considered as territorial waters, 
proved too much, for it would divest the United States of Boston 
Harbour, Long Island Sound, Delaware Bay, Chesapeake Bay, 
Albemarle Sound, and others. 

This six miles width, however, has been varied in some cases by 
Treaties which make the sea-mouth ten nautical miles, such as the 
Anglo-French Treaty of 1839, the Anglo-German Treaty of 1866, 
and the unratified Anglo-American Treaty of 1888. In the Nether- 
lands Manual of International Law it is said : — 

The littoral sea, or territorial water, is reckoned to begin from a 
straight line drawn between the headlands, shoals or islands, which 
form the mouth, or entrance, of the closed bay or river, and between 
which the breadth is not more than ten sea miles. 

These authorities show that landward of the ocean coast, though ^ 
indented by, and inclusive of, rivers, inlets, or arms of the sea, of the\f 
mouth width of six miles, is the territory of the nation which is y \ 
sovereign of the coast, to the defined limit of its dominium eminens. 
It must therefore be conceded that, as inlets and land are the same 
in International Law as to sovereignty, the boundary line must cross 
each at the ten marine league distance from the ocean. 

An American apologist has lately asserted that " no strenuous 
" protest " was made by Canada ; and he attempts to excuse the 
United States' occupation of British Canadian territory by suggesting 
that the United States may reply : " For some twenty-five years out 
" of the thirty Avhich have elapsed since our purchase of Alaska, it 
" was not worth your while to make any serious effort towards a 
" permanent boundary settlement." The history of the persistent 
efforts of the British and Canadian Governments to induce the United 
States to settle the boundary will prove the falsity of the suggested 
excuse. 

(i.) The Treaty ceding Alaska to the United States was signed 
on the 30th of March, 1867; possession was obtained the following- 
October ; and the necessary legislation to give effect to the Treaty 
was enacted by Congress on the 27th July, 1868. Canada became 
territorially a party to the dispute on the 20th of July, 1871. On the 
1 2th of March, 1872. attention was called "to the necessity of some 



198 THE CONTEMPORARY REVIEW. 

•' action being taken at an early date to have the boundary line 
" properly defined." To this Wx. Secretary Fish rephed on the 14th 
of November, 1 872, " that he was perfectly satisfied of the expediency 
" of such a measure, but he feared that Congress might not be willing 
" to grant the necessary funds." 

(2.) On the 1 2th of February, 1873, in response to another appeal, 
" Mr. Fish expressed a doubt whether the necessary expenditure will 
" ever be sanctioned." 

(3.) On the 1 2th of March, 1873, Canada agreed to pay one-half 
of the British expenditure in marking the boundary. 

(4.) On the 23rd of May, 1873. the United States officials in Alaska 
forbad to British subjects the free navigation of the Stikene and 
Yukon Rivers, guaranteed to them by the Russian Treaty of 1825, 
and the Washington Treaty of 1871. The Canadian Government 
protested, and requested that Treaty rights should be observed. 

(5.) On the 1 6th of January, 1874, the Canadian Government again 
strongly urged that immediate steps should be taken to define the 
boundary, as " an alleged conflict of authority had arisen." 

(6.) During the same year certain British settlers laid out a town 
claimed by them to be on Canadian territory, but which the United 
States officials claimed to be within their territory. The difficulty was 
discussed with Mr. Secretary Fish, who asked the British Minister 
what he thought could be done. His reply was, " that the occurrence 
" went to prove the wisdom of the recommendation of Her Majesty's 
" Government, made two years before, that no time should be lost in 
" laying down the boundary between the two territories." Mr. Fish 
again " feared that it would be difficult to obtain the necessary grant 
" during the next Session of Congress," and suggested that " the 
" settlers should be called upon to suspend operations until the ques- 
" tion of territory should be decided," — now a wearisome suspense. 

(7.) On the 23rd November, 1875, ^^e Canadian Government again 
pressed for " an expeditious settlement of the boundary," and offered 
to join in measures for fixing the line on the Stikene River ; but 
there was no response. 

(8.) In September, 1876, one Martin, a Canadian prisoner (with a 
bad gaol record), who was being conveyed down the Stikene River, 
made an assault with a gun on his guards, but was overpowered, 
brought to Victoria, tried and convicted. Mr. Secretary Fish 
demanded his release ; and, on the advice of the Foreign Office, he 
was released, — " an action very gratifying to this (U.S.) Government.'' 

(9.) During the same month a Canadian merchant was notified by 
a Unitea States official to remove his goods from his store, which he 
claimed to be on Canadian territory, or pay United States Customs 
duties, — the official alleging that it was " within the jurisdiction of the 
" United States." The store was afterwards, on a survey, found to 
be seven miles within Canada. 



THE ALASKA-CANADA BOUNDARY DISPUTE. 199 

(jo.) The same year, the Secretary of the Treasury intimated that, 
inimediately after the opening of navigation in the spring, the Govern- 
ment would treat certain places as United States territory, and 
enforce against Canadian settlers the collection of United States 
customs duties. The Canadian Government reported these facts to 
the British Government, " so that the rights of British subjects, as 
" they now exist, may be maintained inviolate, pending a determination 
" of the boundary line by the joint authority of the two nations ; " 
and " that it was wholly the fault of the United States Government 
" that it had not been so determined ; " adding, " It seems very remark- 
•' able that while the United States Government should have hitherto 
" refused, or neglected, to take proper steps to define the boundary, 
" they should now seek to establish it in this manner, in accordance 
" with their own views, without any reference to the British authorities, 
" who are equally interested in the just settlement of the international 
" boundary." 

(II.) On the 26th of March, 1877, an urgent appeal was again 
made to the United States to join in appointing a joint commission 
to settle the boundary. Mr. Secretary Fish's only reply was that 
" the attention of Congress had been requested to the matter." 

(12.) During the same month the Canadian Government again pro- 
tested against the action of the United States in treating certam 
localities as being within United States territory, and urged that 
British settlers should not be interfered with ; and warned the Foreign 
Office that if a conventional, instead of the Treaty, boundary was pro- 
posed, the United States would redouble their pressure for the 
removal of the British traders, and continue their dechnature to 
investigate the settlement of the boundary, " as they had hitherto 
" declined our proposals for the settlement of the true boundary." * 

(13.) On the 1st of October, 1877, Mr. Secretary Evarts was asked 
to consider " the unsatisfactory state of uncertainty as to the exact 
" boundary between Alaska and Canada ; " but he only returned the 
stereotyped reply that " the subject would again be brought before 
" Congress." 

(14.) On the 6th of December, 1877, the Canadian Government 
again complained of the attempt of the United States to collect 
Customs duties from British settlers ; and protested that the Treasury 
order was a direction to its officials " to assume that to be Alaska 
" territory which had hitherto been tacitly assumed to be Canadian 
" soil ; and which the Canadian Government believed could be proved 
"to be so under the Russian Treaty of 1825." No answer having 
been received, the Canadian Government next proposed that a survey 
which had been made at Canada's expense on the Stikene River, 

* This has been disregarded; and now, by conventional lines, which are over 
twenty miles from tide water, arranged between Great Britain and the United States 
in 1899, Canada's access to the Pacific Ocean, through the Lynn Canai, has been 
completely barred. 



200 THE CONTEMPORARY REVIEW. 

which had ascertained the locahty of " lo marine leagues from the 
" coast," should be accepted by both nations as the boundary line on 
that river. Mr. Secretary Evarts agreed to this, on behalf of the 
United States, " on the understanding that the provisional arrange- 
" ment should not be held to affect the Treaty rights of either party." 

Subsequent correspondence up to the Treaty-Convention of 1892 
was much to the same effect. But the above facts seem to indicate 
that there has been no definite Cabinet policy on the Alaska question, 
and that each department has acted on its own initiative. 

Mr. Secretary Fish's despatch on the Martin case may be cited as 
a rebuke to the ex parte action of his Government : — 

The absence of a line defined and marked on the surface of the 
earth, as that of the limit or boundar)', between two nations, cannot 
confer upon either a jurisdiction beyond the point where such line 
should, in fact, be. That is the boundary which the Treaty makes 
the boundary ; surveys make it certain, and patent, on the ground, 
but do not alter rights, or change rightful jurisdiction. It may be 
inconvenient, or difficult, in a particular case to ascertain whether the 
spot on which some occurrence happened, is, or is not, beyond the 
boundary line ; but this is a question of fact, upon the decision of 
which the right to jurisdiction must depend. 

And the remarks of the author of a work on American Diplomacy are 
substantially to the same effect : — 

It is not competent for one of the contracting parties to import 
into a Treaty a construction based upon an ex parte interpretation 
of its text which is not accepted by the other party. 

Some years earlier the United States acknowledged that " a generous 
" spirit of amity " had guided Great Britain in the following 
declaration : — 

It is, therefore, the wish of Her Majesty's Government neither to 
concede, nor, for the present, to enforce, any rights which are, in their 
nature, open to any serious objection on the part of the United 
States. 

There is, however, some hope, that by recent Treaty Conventions 
between the United States and Great Britain the controversy has 
been simplified ; and that the boundary line of 1825 has been affirmed, 
and restored to its original authority and international force. 

By a Treaty-Convention of the 22nd July, 1892, approved by the 
Senate on the 25th of the same month, reciting that the United States 
and Great Britain — 

Being equally desirous to provide for the removal of all possible 
cause of difference between their respective Governments, in regard 
to the delimitation of the boundary line between the United States 
and Her Majesty's possessions in North America, in respect to such 



THE ALASKA-CANADA BOUNDARY DISPUTE. 201 

portions of the said boundary as may not in fact have been 
permanently fixed, in virtue of the Treaties heretofore concluded, 

the Convention proceeds : — 

The High Contracting Parties agree that a co-incident or joint 
survey (as may in practice be found more convenient), shall be made 
of the territory adjacent to that part of the boundary line of the 
United States of America and the Dominion of Canada, dividing the 
Territory of Alaska from the Province of British Columbia and the 
North West Territory of Canada from the latitude of 54° 4°' north 
(Prince of Wales Island), to the point where the said boundary line 
encounters the 141st degree of longitude westward from the meridian 
of Greenwich (Mount St. Ehas), by Commissions to be appointed 
severally by the High Contracting Parties, with a view to the 
ascertainment of the facts and data necessary to the permanent 
delimitation of the said boundary line, in accordance with the spirit 
and intent of the existing Treaties in regard to it, between Great 
Britain and Russia, and between the United States and Russia. 

The High Contracting Parties agree that as soon as practicable, 
after the Report or Reports of the Commissions shall have been 
received, they will proceed to consider and establish the boundary 
line in question. 

By a subsequent Convention the above was re-affirmed, and the 
time for making the Reports was extended to the 31st December, 
1895. The joint Reports were submitted to the respective Govern- 
ments on that date, but as yet no settlement of the disputed line has 
been arrived at. 

On the 30th January, 1897, another Treaty-Convention between 
the two Governments was signed for the appointment of Commis- 
sioners to make the survey of the 141st degree of west longitude, with 
a conditional right to deflect slightly, in case the summit of Mount St, 
Ehas did not lie on the said 141st meridian. 

Prior to this latter Convention, the toMm of Forty-mile had been 
laid out by the United States on the Alaska side, as was supposed, 
of the 141st parallel of longitude. A joint survey, made under this 
Convention, proved that the town was locally within Canadian terri- 
tory ; and the United States thereupon conceded that it was " subject 
" to the jurisdiction and laws of the Dominion." No claim was made 
that it was " a town settled under the authority of the United States," 
and should therefore " remain within the territory of the United 
" States." 

To give effect to the conciliatory, and almost yearly, efforts of 
Great Britain and Canada, a High Commissioner was appointed in 
1898, inter alia, to establish a boundary line by a friendly diplomacy, 
or to refer the settlement of the boundary line of 1825 to Arbitration. 
Here unfortunately " diplomatic finesse,^' with no result except 
" damaging and dangerous delay," and indicating " a grim determina- 

voL. Lxxxir. 14 



202 THE CONTEMPORARY REVIEW. 

" tion, behind fine phrases of diplomacy, to enforce extreme demands, 
" if not to consummate extensive spoliation," so graphically described 
by ex-President Cleveland, became the policy of the High Commis- 
sioners of the United States. Though Great Britain was entitled, by 
the Convention of 1892, to hold the United States bound by their 
re-affirmance of the boimdary line of 1825, she made a generous and 
conciliatory offer to waive, for the advantage of the United States, the 
absolute terms of that Convention, and to concede to the United 
States the benefit of the fifty-year occupation, or settlement, condi- 
tions, imposed by the United States on Great Britain in the Venezuelan 
Arbitration. The British conciliatory offer was nominally accepted, 
but was met by a contrecouf, which practically nullified the fifty-year 
limitation, by proposing, as a condition of arbitration, that " all towns 
" and settlements at tide-water, settled under the authority of the 
" United States, at the date of this Treaty, shall remain within the 
" territory of the United States," — in effect a realisation of ex-Presi- 
dent Cleveland's " extensive spoliation," and a reversal of the Forty- 
mile town case, just referred to. 

The proposition may be cited as a sample of the superb daring of 
American diplomacy. The most exhaustive eclectic in diplomacy would 
vainly search for precedents of a similar contrecoup in previous diplo- 
matic protocols. 

Lord Clarendon once said in a debate on the Oregon question : — 

If the United States did consent to negotiate, it would seem that it 
could only be upon the basis that England was conditionally to 
surrender whatever might be claimed by the United States. 

Ex-President Clevelcind has aptly illustrated how unsanctioned 
occupations influence international diplomacy : — 

An extension of settlements in the disputed territory would 
necessarily complicate the situation, and furnish a convenient pretext 
for the refusal of any concession respecting the territory containing 
such settlements. 

And again : — 

It is uncharitable to see, in reference to possession, a hint of the 
industrious manner in which [a nation] had attempted to improve its 
position by permitting colonisation, and other acts of possession} 
since the boundary dispute began. 

The condition in effect proposed that the United States should 
withdraw their Treaty-pledge of 1892, and that Great Britain should 
abandon all the sovereign rights, or territorial claims, she might be 
able to establish before the arbitral tribunal, respecting " towns and 
" settlements at tide-water settled [even wrongfully on British terri- 
" tory], under the authority of the United States," up to the future 
date of the proposed Arbitration. 



THE ALASKA-CANADA BOUNDARY DISPUTE. 203 

The proposal was entirely inapplicable to the cases of tide-water 
towns or settlements located by the United States along the ocean 
coast, or to those along the tide-water shores of the rivers, or inlets, 
within the ten marine leagues' strip of coast, described in the Treaties 
of 1825 and 1867. It could only be necessary for detemiining the 
fate of towns and settlements located by the United States on the 
tide-water shores, or inland waters, on the British side of the Treaty 
line, and the United States, in proposing it, evidently assumed that 
International Law would warrant the Arbitrators in deciding that 
such towns and settlements were unlawfully settled by the United 
States on British territory. Constructively, it proposed a condonation 
of the unlawful occupation of British territory, and the usurpation of 
British sovereignty by, and a consequent cession of a portion of the 
territorial domain of Great Britain in Canada, to the United States. 

The British Commissioners dechned to consent to such " a marked 
" and important departure from the rules of the Venezuelan Boundary 
" reference," or " that an effect should be given to the occupation of 
" the United States of land in British territory, which reason, justice 
" and the equities of the case, did not require." The dona ferenies 
proposal was thereupon jettisoned; but Arbitration unfortunately 
suffered shipwreck, and all that survived was a tabula ex naufragio 
of protocol sorrows. 

The United States have acquired their present great territorial 
domain partly by Revolution, and partly by the voluntary gift of 
Canadian territory from Great Britain,* by purchase from France, 
Spain and Russia, and by conquests from Mexico and Spain. Under 
what guileless term should be placed the unsanctioned appropriation 
of the Canadian Naboth's vineyard, on the British side of the 
boundary line ? For it is now established, beyond question, that 
during the time Great Britain and Canada were urgently pressing for 
an expeditious settlement of the boundary line, and protesting against 
the irritating treatment of British settlers on Canadian lands, the 
United States were exercising the powers of sovereignty, and were 
making grants of land within the disputed territory. 

If the British contention as to the boundary line shall be ultimately 
sustained by International Law, and the judgment of an arbitral 
tribunal, the United States cannot invoke, in support of their present 
occupation of what shall be found to have been British territory since 
1825, any of the rules of that law which are applicable to military 
occupation, by right of war ; or to insurgent occupation, by right of 
revolution ; nor can the doctrine of mistake of title avail, for the 
British claim was early known, and was supported by conclusive 
American precedents. 

Questions affecting the civil status and citizenship of persons born 

* The gift was that part of old French Canada, now the States of Ohio, Indiana, 
Illinois, Michigan, Wisconsin, and Minnesota, comprising about 300,000 square 
miles of the Canadian territory ceded by France to Great Britain in 1763. 



204 THE CONTEMPORARY REVIEW. 

on, or married, or taking oaths of citizenship within such territory ; 
questions affecting the transfer or descent of property, and of titles 
acquired under forfeiture laws ; questions affecting the administration 
of civil and criminal jurisprudence, and the imprisonment or execution 
of criminals ; and questions affecting official appointments and muni- 
cipal and other corporations, and the exercise of legislative and dele- 
gated powers of sovereignty, must arise respecting the civil rights, 
and public relations, and land titles, of the inhabitants of the territory 
which shall be adjudged to belong to the British Crown, and may 
lead to far-reaching and expensive litigation ; and these questions 
Great Britain, in view of the urgent and continued protests made, and 
passively slighted, cannot justly concede. 

Citizenship is determined by birth on the soil. The only exception 
to the universality of this rule was made in the cases of children born 
in Oregon during its joint occupation by the United States and Great 
Britain, under the Treaty of 1818. The Courts held that between 
1 8 18 and 1846 children born there of British parents were British 
subjects ; and that children born there of American parents were 
citizens of the United States. 

Legislative and Executive Sovereignty and judicial power over 
territory are incident to the national ownership of the soil. The 
Supreme Court of the United States has so decided, and has furnished 
precedents affecting the rights of property within a similarly disputed 
territory. While Spain was sovereign of Florida, and prior to its 
cession to the United States in 1795, her Government had made grants 
of land within a certain disputed territory, which were subsequently 
impeached. In giving judgment, Chief Justice Marshall said : — 

There was no cession of territory. The jurisdiction of Spain was 
not claimed or occupied by force of arms against an adversary power ; 
but it was a naked possession under a misapprehension of right. 
In such a case, the United States, within whose sovereignty the land 
was in fact situated, was not bound to recognise the grants of tide by 
the Spanish Government. We think the Treaty settling the boundary 
an unequivocal acknowledgment that the occupation of the territory, 
now acknowledged to be United States territory, was wrongful. It 
follows that the Spanish grants can have therefore no intrinsic 
validity. 

And in other cases, the Court has held that Patents of land dated 
before, but not delivered until after, the ratification of a Treaty ceding 
territory to the United States, were invalid. Similarly, where two 
States, under a mistake in surveys, granted lands which, on a corrected 
survey, were found to be within the territory of another State, their 
grants were adjudged nullities, and inoperative to vest any title in 
the grantees. 

As is stated in Hall's International Law: — 

To infringe the rights of others remains legally wrong, however 



THE ALASKA-CANADA BOUNDARY DISPUTE. 205 

slight in some respects may be the moral impropriety of the action. 
If a State commits a trespass upon its neighbour's property, which 
may, or may not be, morally justified, it violates the law as distinctly, 
though not so noxiously, as a neighbour would violate it by making 
a track through a neighbour's field to obtain access to a high road. 

The moral accountability of the Government of a nation to kindred 
nations necessarily involves the moral duty of imposing a reasonable 
restraint on its political actions, and of so acting in its international 
relations with such kindred nation as it would reasonably expect such 
kindred nation to act towards it. President Woolsey has tersely stated 
one of the rules : " A State is a moral person capable of obligations, 
" as well as rights, and no acts of its own can annihilate its obligations 
" to another." And Senator Sumner in supporting the Alaska Treaty 
of 1867 used words specially pertinent to the Anglo-American Treaty 

■of 1 892 : 

It is with nations as with individuals : a bargain once made must 
be kept. I am satisfied that the dishonour of this Treaty, after what 
has passed, would be a serious responsibility for our country. As an 
international question our act would be tried by the public opinion of 
the world. 

These principles of national responsibility logically affirm the general 
rule that the Government of a nation (and the same rule will be 
universally admitted to be obligatory on land-holding neighbours) 
is morally bound by the national honour of its sovereignty not to 
aggressively occupy the territory the title to which is disputed, with 
some show of Treaty right, by another nation. A passive resistance 
to, or a positive refusal of, a reference of the disputed claim to what 
-ex-President Cleveland designates as " the honourable rest and justice 
" found in Arbitration, — the refuge which civilisation has builded for 
" the nations of the earth, and from which the ministries of peace issue 
" their decrees," would warrant the judgment of the tribunal of nations 
that the nation so resisting, or refusing, was attempting a denial of 
international justice, and was thereby degrading its national honour. 

Some writers in the United States advise against submitting the 
boundary dispute to Arbitration, because the United States " have 
" nothing to gain and everything to lose ; " others because " an adverse 
" decision would greatly lessen for the United States the present and 
" future value of the Alaska lisiere " — a morality illustrated by the 
maxim, nous avons Vavantage, profitons en. And a writer in an 
Enghsh periodical, whose notions of international justice seem equally 
tamted, has said : " In asking America to submit the whole question to 
" Arbitration, with evenly-balanced chances of success or failure, we 
" are asking her to take chances which no democratic Government 
'" can afford to take." One fair inference from these avowals is that 
international justice and national rectitude are alien principles of action 



2o6 THE CONTEMPORARY REVIEW. 

to democratic Governments. Another logical sequence is that a 
democratic Government may be the party litigant before itself, as 
judge and jury, and on its own view of its one-sided and biassed 
evidence, may decide against the territorial rights of an unwarned, 
because a monarchicaJ, though friendly, Government. The mere 
mention of such inferences should ensure their universal repudiation ; 
for the people of the United States have not, even in their demagogic 
outbursts against England, lapsed from the principles of international 
justice and national rectitude which form the warp and web of their 
political responsibility to other nations, and which have long been 
consecrated by the homage rendered to Christian ethics in their 
churches, and enforced by the teachings of moral and political science 
in their colleges. 

In the Behring Sea case the United States conclusively showed that 
" there is an International Law by which every controversy between 
" nations may be adjudged and determined ; " that its rules are moral 
rules, dictated by the general standard of natural justice, upon which 
all civihsed nations are agreed ; and that, though there are differences 
in the moral instincts, or convictions, of people of different nations, and 
no enactments in the ordinary sense of the term, for all members of 
the society of nations, nor indeed regulating the larger part of the 
affairs of ordinary life, — there are always existing laws by which ever}' 
controversy, national or individual, may be determined. 

The United States have made themselves the champions of, and 
have declared their national faith in " the honourable rest and justice 
" found in International Arbitration ; " and at the Hague Peace Con- 
ference they pledged their nation " to use their best efforts to secure a 
" pacific settlement of International differences," and joined with Great 
Britain and other nations in affirming that, " in questions of a legal 
" nature, and especially in the interpretation of International Conven- 
" tions. Arbitration is recognised by the Signatory Powers as the most 
" effective, and at the same time the most equitable, means of settling 
" disputes which Diplomacy has failed to settle." After urging Great 
Britain into Arbitration over the Alabama claims, and the Behring 
Sea fisheries ; and especially after driving her into Arbitration over 
the Venezuelan Boundary Dispute (which in no way affected their 
territorial or national interests), will the United States refuse to recog- 
nise these precedents, or to give effect to their compact with the 
nations as expressed in the Hague Convention ? 

Thomas Hodgins. 



THE 

DONTEMPOEAEl 
EEVIEW. 

PUBLISHED MONTHLY. 
AUGUST, 1902 

1. THE LIBERAL PARTY— PAST AND FUTURE. 

By J. A. SPENDER. 

2. ENGLAND AND GERMANY AFTER THE WAR. 

By J. L. BASHFORD. 

3. QUEEN ALEXANDRA. By Mdlle. HELENE VACARESCO. 

4. THE ALASKA-CANADA BOUNDARY DISPU IE. 

By THOMAS llODGINS. 

5. BIRD LIFE. By T. DIGBY PIGOTT, C. B. 

6. THE ECONOMIC TAP-ROOT OF IMPERIALISM. 

By J. A. HOBSON. 

7. IMMORTALITY. II. From the Scientific Standpoint. 

By EMMA MARIE CAILLARD. 

8. PREVALENT ILLUSIONS ON ROMAN HISTORY. 

Hy A. M. STEVENS. 
""pT DMITRI MEREJKOVSKI. By KATHERINE WYLDE. 

10. DO WE NEED DOGMA ? By SAMUEL McCOMB. 

11. FOREIGN AFFAIRS. By Dr. E. J. DILLON. 

12. SOME RECENT BOOKS. By"AREADEK." 

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